¶1The judgment of the court was pronounced by
¶2Harper was arrested under a charge .of “ killing A. O. Fuqua.” After hearing his voluntary confession, the justice of the peace, before whom he was examined, admitted him to bail, on his giving a bond and security in the sum of $5000, and the defendants became his sureties. At the next ensuing term of the District Court, an indictment for murder was found against Harper, who failed to appear and answer to the charge preferred against him. When the sureties were called upon the bond, they opposed its forfeiture, and denied their liability, on the ground, among many others. which\ were urged, that the justice of the peace who received this' bond was without authority to admit the accused to bail. The district judge overruled their opposition, and rendered a judgment, in solido, against them, from which they have appealed.
¶3The lowest grade of homicide, regarded as a ci’ime 'is manslaughter, which may be punished with imprisonment at hard labor for twenty-one years. The act of the 31st March, 1807, (Bui. & Cur. Dig. p. 530), requires the justice of the peace, before whom complaint is made of any crime, after an examination, “ to send the accused to jail under the custody ofliis constable, if the crime be punishable with death, or with seven years or more imprisonment at hard labor; or to set him at liberty if the offence be punishable with less severe pains, upon giving security in such sum” &c. The act of the 3d May, 1805, is to the same effect, declaring justices of the peace incapable of admitting to bail parties, charged with offences punishable with death, or exclusively cognizable by the Superior Court. Bui. & Cur. Dig. p. 529. Those crimes were capital crimes, and crimes punishable with hard labor for life, or for seven years or upwards. Sess. Acts, p. 448, § 43. In these cases the justice of the peace is required to commit the accused to the custody of the sheriff, who is to hold him in confinement, until he be delivered in due course of law.
¶4In the case of the The State v. Hebert et al., 10 Rob.p. 41, justices of thepeace were declared, under the authority of these statutes, to be incompetent to admit to bail parties charged with crimes which may be punished with imprisonment at hard labor for seven years or more, and a bail bond taken by a justice of the peace, on such complaint, was held to be in contravention of a prohibitory statute, and consequently void.
¶5The district judge, however, considered that these statutes, as far as they restrain the power of justices to admit to bail, have been repealed by the 108th article of the constitution of 1845, and the corresponding article of the constitution of 1812, which declare that, “ all prisoners shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident or presumption great.” These articles announce no rule which was not in full force in the territory of Louisiana when the statutes of 1805 and 1809 were enacted, and stand in no necessary conflict with those acts.
¶6These constitutions are silent in relation to the magistrates who shall exercise the right of receiving bail. This was left to the discretion of the legislature, who have wisely committed the exercise of this important power to a higher order of judicial officers when the complaint relates to grave crimes, and to an inferior magistracy the same power is reference to offences of less magnitude. This legislation is not inconsistent with the right of the accused to be admitted to bail, when the offence with which he is charged does not fall within the excepted class mentioned in the constitution. I<t denies the right to none to whom it is accorded by the constitution, but merely discrimínalos between *600the officers who shall exercise the power of granting bail, according to the gravity of the offence.
¶7The judgment of the District Court is, therefore, reversed, and judgment rendered in favor of the appellants.